On 6 October 2025, in the case of Henderson v GCRM Ltd and ors, the Employment Appeal Tribunal (EAT) held that in a whistleblowing claim, it is not permissible to combine the act of one employee with the motive of another in considering whether a detriment has occurred because of a protected disclosure. The EAT concluded that it would be unjust to impose personal liability for actions taken by a ‘manipulator’ on an ‘innocent’ party who does not know about the disclosure. For the full judgment, click here.  

In this insight, we look at the reasons for that decision and key takeaways. 

Background 

If a worker makes a protected disclosure (“blows the whistle”) they have the right, under 47B of the Employment Rights Act 1996 (ERA), not to be subjected to any detriment (detriment under 47B includes the detriment of dismissal - Court of Appeal in Timis v Osipov [2019]), either by their employer (47B(1)) or by a worker or agent of the employer (47B(1A)), on the ground that they have made a protected disclosure.  

An individual may be personally liable in a detriment claim under 47B(1A). If such liability is established, the employer will also be liable by virtue of 47B(1B), unless it is able to establish the statutory defence in 47B(1D).  

It is important to note that in cases involving dismissal, employees have further protection under 103A ERA; they will be automatically unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure. Only an employer can be liable for an automatically unfair dismissal claim. 

Establishing the reason for the detriment or dismissal is therefore key. However, determining motive can be difficult where a person who knows about a qualifying protected disclosure (a "manipulator") causes a whistle-blower to be subjected to a detriment or dismissal for that reason by an "innocent" individual who does not know about the disclosure. The Supreme Court set out the approach to be taken in relation to this issue in 103A dismissal claims in Royal Mail Limited v Jhuti [2018]. The Supreme Court held that, in certain limited circumstances, the principal reason for a dismissal in a complaint under 103A may be found to be the making of a protected disclosure, even though that was not in the mind of the dismissing officer of the employer at the time of the decision to dismiss. For more details on this case, see our insight. 

The facts of this case 

The claimant (C) was employed by the first respondent (R1) as an embryologist. Between 30 August 2019 and 20 August 2021, C had made a number of disclosures about staffing issues to R1 and to an individual manager, who was named in the claims as the second respondent (R2).  

In August 2021, R2 appointed an officer to investigate allegations about C’s conduct. This ultimately led to disciplinary proceedings against C that R2 materially influenced.  

An independent manager, also named in the claim as Third Respondent (R3) took the decision to dismiss C in February 2022 for misconduct.  

Following her dismissal, C pursued the following claims in the Employment Tribunal (ET): 

• 94 ERA “ordinary” unfair dismissal against R1.  
• 103A ERA automatically unfair dismissal due to whistleblowing against R1. 
• 47B(1A) ERA whistleblowing detriment of dismissal against her line manager (R2) and the dismissing manager (R3). 
• 47B(1B) whistleblowing detriment of dismissal claim against R1 under section on the basis that it was liable for the actions of R2 and/or R3. 

The ET’s decision  

The ET accepted that R2 was a ‘key influence’ on R3 through their involvement in the disciplinary process, that they ‘shaped the investigation’ and ‘extensively informed and guided the process’. The ET found that R2’s actions in that regard had been motivated, at least in part, by the fact that C had made protected disclosures.  

Although the ET found that C’s protected disclosures had a material influence on her dismissal, her 103A automatic unfair dismissal claim against R1 failed as the disclosures were not determined to be the sole or principal reason for the dismissal. This is because the ET found that the decision to dismiss was R3’s alone, she was unaware of the protected disclosures and had a genuine belief in C’s misconduct.  

The ordinary unfair dismissal claim was, however, upheld on the basis that R3’s belief in C’s misconduct was not held on reasonable grounds or after reasonable inquiry, and the decision to dismiss was not within the band of reasonable responses. 

The ET rejected the 47B(1A) detriment (of dismissal) claim against R2 as R2 did not personally make the decision to dismiss.  

The ET did uphold the 47B(1A) detriment (of dismissal) claims against R1 and R3. Applying the principles in Jhuti, the ET found that R3 was personally liable for the decision to dismiss, as the thought processes and motives of R2 could be imputed to R3. R1 was found vicariously liable for R3’s detrimental treatment of C under 47B(1B).  

The C appealed on the basis that the ET had not applied Jhuti to the 103A claim when looking at the true reason for the dismissal and R1 and R3 appealed on the basis that Jhuti had been improperly applied to the 47B(1A) claims. 

The EAT’s decision 

R1 and R3’s appeals were upheld, and the ET’s judgment was set aside. The EAT found that: 

• The ET had erred in applying Jhuti to the 47B(1A) complaints against R2 and R3 and in finding R1 and R3 liable for those complaints.  
• “Such an approach to liability was unacceptable in principle in a section 47B(1A) complaint as it cannot have been the intention of Parliament to impose unlimited liability upon innocent individuals who have not personally been motivated by [a protected disclosure].” 
• “The purposive approach to the legislation in both Timis and Jhuti reflected, in each case, the need to provide the claimant with an effective remedy. That purposive approach provides whistle-blowers with a full and effective range of causes of action and remedies for protected disclosure detriment without liability ever having to be imposed upon a wholly innocent party.” 
• “There is no need to extend the ratio of Jhuti into complaints under section 47B(1A), and very good reason not to do so.” 

The EAT noted that the C did not claim that any of the respondents’ actions amounted to pre-dismissal detriment. Had she done so, the EAT observed, “there is no reason in principle why Jhuti could not, in appropriate circumstances, apply to a direct claim against an employer for non-dismissal detriment in terms of section 47B(1).” 

The C’s appeal was also upheld. The EAT found that: 

• Once Jhuti had been raised by C as a live issue, “it was necessary for the [ET] to make clear findings about whether or not [R2] had improperly manipulated [R3] through his involvement in the disciplinary process or created a false pretext for dismissal which he induced [R3] to adopt in order to hide a proscribed reason.” 
• The ET had erred in failing to engage with those issues, and so the 103A complaint was remitted back to the same ET for it to consider those questions.   

What to take away 

This judgment follows the EAT’s consistent approach to the scope of Jhuti: it does not apply to detriment claims under 47B(1A). So, for a detriment claim to succeed against an individual, the person who subjects the whistle-blower to a detriment must personally be motivated by the protected disclosure. This will be welcome news for managers; it means that they cannot be held personally liable for the unlawful actions of another if their own motivations are innocent. 

Although good news for the dismissing manager in this case, it is less so for the employer; they may still be found liable for the dismissal, but under a different provision (103A automatically unfair dismissal). 

This judgment also follows the consistent purposive approach of the courts to ensure that claimants whose cases do not fit squarely into the whistleblowing regime have an effective remedy against their employers for the whistleblowing detriment and dismissal.  

It is important to note that one of the EAT’s purposive decisions, Wicked Vision v Rice, was heard by the Court of Appeal on 15 October 2025. This appeal will determine whether or not an employer may be held vicariously liable for a co-worker or agent's actions in imposing the detriment of dismissal if the employee can already bring a 103A automatically unfair dismissal claim directly against the employer.  

How Capsticks can help 

We have extensive experience in supporting employers to pro-actively encourage an open and transparent speaking up culture, support whistle-blowers and prevent ‘retaliation’, including by drafting speaking up policies, codes of conduct and delivering training to employees at all levels.  

We also help organisations to manage concerns and difficult issues, deal with any complaints that may arise, through conducting investigations, supporting decision makers and HR, and defending any employment tribunal claims brought regarding detriment and dismissal on the grounds of protected disclosures.  

If you would like access to advice, training or need further guidance on the management of protected disclosures, please contact Laura Horovitz, Chloe Edwards and Sean Hick.